Prajapati and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3375

Prajapati and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3375 (13 September 2018)

Division:GENERAL DIVISION

File Number:2017/6737           

Re:Hem Prajapati  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 September 2018

Place:Sydney

The decision under review is affirmed.

..........................[sgd]...........................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – citizenship by conferral – whether applicant is of good character – criminal offences committed – failure to disclose all offences – whether any mitigating factors or explanations by applicant outweigh behaviour – character references considered – domestic violence conduct inconsistent with community standards of behaviour – applicant unable to satisfy good character requirements – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 21(2)(h)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Sharma and Minister for Immigration and Border Protection [2015] AATA 608

SECONDARY MATERIALS

Australian Citizenship Instructions, Department of Immigration and Border Protection, 1 July 2014
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Dr L Bygrave, Member

13 September 2018

INTRODUCTION

1. The applicant, Mr Hem Prajapati, is a citizen of the United Kingdom. He first arrived in Australia on 5 November 2001 on a working holiday visa, and subsequently held a temporary business visa and a temporary work visa. Mr Prajapati was granted a permanent resident visa (Employer Nomination Scheme subclass BW-856) on 15 November 2006.

2. On 25 January 2017, Mr Prajapati applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) on 19 October 2017 on the basis that Mr Prajapati did not satisfy the good character requirement in paragraph 21(2)(h) of the Act.

4. On 14 November 2017, Mr Prajapati applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of that decision.

5. The matter was heard in Sydney on 23 August 2018. Mr Prajapati did not have legal representation; he attended the hearing and gave oral evidence in person.

   RELEVANT LEGISLATION AND ISSUES

6. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship as follows:

   General eligibility

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)  is aged 18 or over at the time the person made the application; and  (b)  is a permanent resident:

   (i)  at the time the person made the application; and

   (ii)  at the time of the Minister's decision on the application; and

   (c)  satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

   (d)  understands the nature of an application under subsection (1); and

   (e)  possesses a basic knowledge of the English language; and

   (f)  has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and 

   (g)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

   (h)  is of good character at the time of the Minister’s decision on the application. [emphasis added]

7. The issue for determination by the Tribunal is whether Mr Prajapati is of good character as required by paragraph 21(2)(h) of the Act.

   Definition of ‘good character’

8. The term ‘good character’ is not defined in the Act. However, the Citizenship Policy offers guidance on the interpretation and application of the good character requirement. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1] Further guidance is provided by the Australian Citizenship Instructions dated 1 July 2014, which detail operational instructions and supplement the Citizenship Policy.

   [1] [1979] AATA 179; (1979) 2 ALD 634.

9. As to the definition of good character, the Citizenship Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:

   Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion…[2]

   [2] (1996) 68 FCR 422 at [431]-[432].

10. The Citizenship Policy states the phrase ‘enduring moral qualities’ encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, which includes conforming to the rules and values of Australian society.

11. This broad definition of the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics. I can be satisfied that an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout their citizenship process.[3]

    [3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, p.146.

12. In Re Fenn and Minister for Immigration and Multicultural Affairs, Deputy President Breen discussed the requirement of character in a citizenship application:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[4]

    [4] [2000] AATA 931 at [8].

13. The Citizenship Policy sets out a non-exhaustive list of characteristics of good character. Relevant to this decision, a person of good character would:

    ·respect and abide by the law in Australia or other countries;

    ·not conceal convictions that could lead to the cancellation or refusal of a visa or citizenship; and

    ·not be violent and not cause harm to others through their conduct.

14. As set out in the Citizenship Policy, the question for decision makers is whether any mitigating factors and/or explanation provided by the applicant outweighs the behaviour in question. This assessment requires considering an aggregate of qualities and weighing up factors, applying community standards.

15. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant did, the amount of time that has elapsed since his offending, whether the applicant has demonstrated that he has upheld and obeyed the law, whether he has accepted responsibility and shown remorse for his conduct, and any extenuating circumstances relating to the offences.

    Offences

16. A National Police Check Results Report dated 13 June 2017 shows Mr Prajapati has been convicted of the following offences:

    ·Balmain Local Court: 24 October 2012. Offence: ‘Contravene prohibition/restriction in AVO [Apprehended Violence Order] (Domestic)’. Result: fine $1000, s 9 bond 12 months.

    ·Newtown Local Court: 8 April 2016. Offence: ‘Common assault (DV)-t2’. Result: fine $250, s 9 bond 12 months.

    ·Newtown Local Court: 8 April 2016. Offence: ‘Stalk/intimidate intend fear physical etc harm (domestic)-t2’. Result: fine $250, s 9 bond 12 months.[5]

    [5] Exhibit T-T5, p.111.

17. At the Tribunal hearing, Mr Prajapati provided extensive oral evidence about these convictions. Mr Prajapati also filed an affidavit dated 11 April 2013,[6] which described the circumstances of his marriage and protracted separation from his ex-wife. Mr Prajapati accepted that he and his ex-wife had heated arguments but stated these were verbal and never physical. Mr Prajapati confirmed that he pleaded guilty to breaching an interim AVO by texting his ex-wife in 2012.

    [6] Exhibit A1.

18. The Tribunal also heard evidence about the events relating to convictions in the Newtown Local Court on 8 April 2016. The Minister’s representative referred to New South Wales Police records from 15 August 2015 that described verbal and physical confrontations between Mr Prajapati and his ex-partner. Mr Prajapati strongly denied the claims of his ex-partner as reported in the Police records and said the offences of stalk/intimidate and assault never occurred. Mr Prajapati accepted that he was convicted of these offences on 8 April 2016 by the Court but stated that he pleaded not guilty.

    Failure to disclose offences

19. The Minister contends that Mr Prajapati failed to disclose all his offences in the section titled ‘Character declarations’ in his application for Australian citizenship. Mr Prajapati’s response to the question in his citizenship application was as follows:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia?

    Yes

    AVO taken out against me from my former girlfriend march [sic] 2016[7]

    [7] Ibid.

20. At the Tribunal hearing, Mr Prajapati acknowledged that he did not declare all the offences set out in paragraph 16 above. I am satisfied that he failed to disclose all his previous convictions in his application for Australian citizenship.

    Character references

21. The Citizenship Policy states that:

    …referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character.[8]

    [8] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, p.155.

22. I also have regard to the relevant paragraphs in the Citizenship Policy that give advice regarding the level of weight to be given to references.

23. Mr Prajapati provided a statutory declaration dated 5 July 2017, attaching references from Ms Ingrid Pollard (clinical psychologist) on 27 June 2013 and Mr Stephen Walton (CatholicCare) on 13 May 2013.[9] Ms Pollard reported that Mr Prajapati attended psychological therapy from December 2010 to March 2012 and saw no evidence that Mr Prajapati had issues associated with anger or anxiety. The report of Mr Walton also noted Mr Prajapati had been assessed as unsuitable for a men’s behaviour change program. 

    [9] Exhibit T-T6, pp 126-127.

24. Mr Prajapati produced five statutory declarations from his friends and colleagues. These declarations affirm the good character of Mr Prajapati, describing him as honest, reliable, devoted to his daughter, a hard worker and trustworthy. Some of the references acknowledge Mr Prajapati’s court proceedings within the context of a difficult separation/divorce with his ex-wife and fear of losing access to his daughter, and relationship/family and financial pressures with his ex-partner.[10]

    [10] Exhibit T-T6.

25. A statutory declaration from Mr Prajapati’s current partner, who has known him for four years, supported his version of events with his ex-partner in 2015 and noted the following:

    In the years that I had known Hem, I never once saw him get physicaly [sic] angry. …

    I have never felt threatened by or had any concern knowing the history that Hem has had to deal with…

    He is caring, loyal and supportive. He values the culture, the country and practices everything about being Australian.[11]

    [11] Exhibit T-T1, p 15.

26. While the characteristics described in these references demonstrate qualities of someone with good character, I am not satisfied that the information in all Mr Prajapati’s references outweigh the evidence of his offending behaviour.

    CONSIDERATION

27. Mr Prajapati was convicted of serious offences in the Courts on 24 October 2012 and 8 April 2016, which were not fully disclosed in his application for Australian citizenship.

28. I am satisfied that these offences are not consistent with the good character requirement in the Citizenship Policy for a person to not be violent and not cause harm to others. I accept the Court’s convictions in relation to these offences but note Mr Prajapati’s evidence of extenuating circumstances. I also rely on the decision in Re Sharma and Minister for Immigration and Border Protection, in which Deputy President Constance stated that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.[12]

    [12] [2015] AATA 608 at [37].

29. Mr Prajapati’s evidence to the Tribunal was genuine and honest. In my view, he showed sincerity in acknowledging his mistakes and accepting the consequences. Mr Prajapati expressed remorse that his actions caused his ex-wife and his ex-partner to fear him. He was candid in his explanation to the Tribunal that he had actively sought psychological counselling to understand his behavior and ensure these situations are not repeated.  

30. Mr Prajapati has provided character references which state that he is honest, reliable, caring and trustworthy. Nonetheless, the serious nature of his offences does not allow me to consider that he is of good character at this time.

31. I also am not satisfied that Mr Prajapati has displayed an adequate period of compliance with Australian law. An AVO against Mr Prajapati remained in force until 8 April 2017, which is approximately three months after he applied for Australian citizenship and 16 months from the date of this hearing.

    CONCLUSION

32. In considering all of the relevant circumstances and weighing the available evidence, I am unable to make a positive finding of good character for Mr Prajapati and for this reason he does not satisfy paragraph 21(2)(h) of the Act.

33. My conclusion does not preclude Mr Prajapati from making a further application for citizenship in the future. It may be that with the passage of time, Mr Prajapati will be able to demonstrate that he does meet the requirements for a grant of citizenship.

    DECISION

34. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[sgd]............................

Associate

Dated: 13 September 2018

Date of hearing:	23 August 2018
Applicant:	In person
Solicitors for the Respondent:	Chris Brinley